Beyond Good Will - Enforcing Document Production from Parties to an International Commercial Arbitration

Documentary evidence is crucial in most arbitration cases. Increasingly, parties are facing the problem of how to compel or induce their adversaries to produce documents exclusively possessed by the latters. Courts possess the power to enforce their orders for the production of such documents. For arbitral tribunals, lacking imperium or means of coercion, there are real doubts as to the enforceability of cross-border document production orders. This thesis identifies the three most viable methods for such enforcement. Firstly, enforcement via national law. Generally, national arbitration law provide for enforcement of document production orders from a tribunal seated within the country. In some jurisdictions, enforcement mechanisms are... (More)

Documentary evidence is crucial in most arbitration cases. Increasingly, parties are facing the problem of how to compel or induce their adversaries to produce documents exclusively possessed by the latters. Courts possess the power to enforce their orders for the production of such documents. For arbitral tribunals, lacking imperium or means of coercion, there are real doubts as to the enforceability of cross-border document production orders. This thesis identifies the three most viable methods for such enforcement. Firstly, enforcement via national law. Generally, national arbitration law provide for enforcement of document production orders from a tribunal seated within the country. In some jurisdictions, enforcement mechanisms are provided also when the arbitral tribunal is seated in a foreign state. An increasing number of jurisdictions are in national arbitration legislation opening up for such court enforcement of cross-border documentary orders. Secondly, enforcement via adverse inferences. This is the most frequently cited and, as anecdotal evidence has it, most commonly used method of enforcement: the tribunal drawing or posing the threat of drawing adverse inferences from the party's failure to produce certain documents. Thirdly, the New York Convention has lent itself to enforcement in at least one case. These enforcement methods will be researched, using classical legal method. In an attempt to give advice as to which method is better, they will be compared. The latter analysis is done in relation to two parameters: efficiency and due process. The thesis concludes that all three methods may be useful, however in different factual circumstances. (Less)

@misc{1560952,
abstract = {Documentary evidence is crucial in most arbitration cases. Increasingly, parties are facing the problem of how to compel or induce their adversaries to produce documents exclusively possessed by the latters. Courts possess the power to enforce their orders for the production of such documents. For arbitral tribunals, lacking imperium or means of coercion, there are real doubts as to the enforceability of cross-border document production orders. This thesis identifies the three most viable methods for such enforcement. Firstly, enforcement via national law. Generally, national arbitration law provide for enforcement of document production orders from a tribunal seated within the country. In some jurisdictions, enforcement mechanisms are provided also when the arbitral tribunal is seated in a foreign state. An increasing number of jurisdictions are in national arbitration legislation opening up for such court enforcement of cross-border documentary orders. Secondly, enforcement via adverse inferences. This is the most frequently cited and, as anecdotal evidence has it, most commonly used method of enforcement: the tribunal drawing or posing the threat of drawing adverse inferences from the party's failure to produce certain documents. Thirdly, the New York Convention has lent itself to enforcement in at least one case. These enforcement methods will be researched, using classical legal method. In an attempt to give advice as to which method is better, they will be compared. The latter analysis is done in relation to two parameters: efficiency and due process. The thesis concludes that all three methods may be useful, however in different factual circumstances.},
author = {Olsson, Emma},
keyword = {Förmögenhetsrätt,Avtalsrätt,Komparativ rätt,Processrätt,Utrikeshandelsrätt},
language = {eng},
note = {Student Paper},
title = {Beyond Good Will - Enforcing Document Production from Parties to an International Commercial Arbitration},
year = {2008},
}